The outbreak of the coronavirus Covid-19 raises challenging points of Health and Safety Law, Employment Law, Data Protection Law, Immigration and Employment Equality issues. The outbreak is prompting employers and HR Departments to assess the risks, review existing Contracts of Employment and Company Policies, devise a plan and clearly communicate with employees on a continuing basis in light of the evolving spread of Covid-19.
What should employers do?
Employers should carry out a Risk Assessment of the workplace under Health and Safety legislation. Measures to protect against the spread of Covid-19 entering the workplace and to mitigate or minimise the effects of an outbreak at the workplace should also be adopted. Measures could be minimal such as ensuring sufficient hand sanitisers, hand wipes and increased cleaning of surfaces. Other options include permitting or requiring employees to work from home or remain out of work.
Relevant company policies should be reviewed, including policies such as an existing infectious disease outbreak response plan, sick pay policy, holiday policies, force majeure policies, carers policies and lay-off policies.
Communicate with your employees
Once the initial risk assessment has been carried out and all policies reviewed, strong HR communication with staff is critical to ensuring a full understanding by employees of what is expected of them, particularly if they become symptomatic or in contact with somebody who is symptomatic. Employees should also be informed that if a significant portion of the workforce become infected or are required to remain in “self-isolation” the policies may need to be adapted to changing circumstances.
Obligations around pay and sick leave
One of the main questions for an employer will be whether to pay or not pay an employee who is required to remain out of work but not diagnosed with Covid-19. If those employees can continue to work from home then they should be paid their normal renumeration. If they’re not able to work from home, the employer needs to apply a consistent policy across the workforce and keep that policy under review.
Where an employee has not contracted Covid-19 but is required to remain out of work and unable to work because of public policy considerations or directions, any sick pay policy will not apply to that employee until such time as the employee has contracted Covid-19.
Additionally, an employer may need to relax normal rules around providing medical certification of sickness in circumstances where medical professionals may not be in a position to provide certification and/or employees may not be in a position to obtain medical certificates in a timely fashion.
In parallel with the application of any sick pay policy, the employer needs to ensure that it has a robust absence policy for employees who may seek to unfairly take advantage of a developing situation. Consideration will need to be given to employees who refuse to come to work, including those based on reasonable grounds. Flexibility around unpaid leave, annual leave and/or carers leave might need to be considered by the employer.
In extreme cases, an employer may be required to temporarily shut a significant part or all of the workplace. Employers may be able to temporarily “layoff” staff under existing contracts of employment and the employee handbook. An infectious disease outbreak response plan would also need to take consideration of employees who have travelled abroad on behalf of the employer, in particular, employees returning from areas that are subject to an outbreak of Covid-19.
Applying an infectious disease outbreak response plan
In implementing any infectious disease outbreak response plan, an employer must have particular regard for individual employees who have contracted Covid-19 or who may be required to remain out of work. Information in relation to individual employees will be personal data under GDPR and will require to be treated with the greatest sensitivity by the employer.
Another challenge for employers applying an infectious disease outbreak response plan is to ensure that its application is not based on race, nationality or ethnicity. The Employment Equality Acts prohibits discrimination against employees on a number of grounds, including race, with severe consequences for employers who are found to have discriminated against employees.
In summary, an employer’s infectious disease outbreak response plan should be reviewed frequently in light of any developing situation within the workplace and generally and taking into account of advice from appropriate authorities such as the government, HSE and World Health Organisation.
Article by David Pearson, Partner on J.W O’Donovan Solicitors’ Employment Law team. If you would like more information on this topic, contact David at firstname.lastname@example.org or 021 7300200.